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Podcasting, music and the law

Filed in: music, rights, Tue, Feb 15 2005 00:24 PT

ASCAP updated its Internet licensing to reference podcasts — oh, excuse me, pod-casts — last week. The move may have been intended to answer some questions as to the legality of using music in podcasts, but, as with the webcasting era, it left a lot of people scratching their heads. Is this all we need, just a $288 license to this agency, to be covered through 2005?

Well, there’s some bad news. The truth is that, no, that’s not everything. In fact, the landscape for music licensing is even more confusing than most people would imagine, and it at times consists of entities who may not even want to sell you a license. Here, I try to break them down. Know that I am not a lawyer, and as such am not going to know much more detail than is absolutely necessary.

Songwriters

ASCAP is essentially a middleman for songwriters’ royalties. Authors join ASCAP knowing they have agreements with others for capturing and redistributing royalties as they accrue from various sources (radio, TV, commercials, etc.).

But ASCAP is only one of these middlemen. BMI and SESAC are also in the same business, and they have their own licensing policies. In order to check compliance, you’ll need to verify that all of the music you’re playing is by artists that are ASCAP members — or, like radio stations do, license all of them. For the calendar year 2005, BMI wants $283 for what appears to be the same license as ASCAP’s, and SESAC wants $168.

So that $300 bill has turned into a $750 bill to license your music. The bad news for the non-profit podcaster is that you’re not done. Not by a long shot.

Content owners

You’ve paid the songwriters, which gives you the rights to the music being performed.

But that doesn’t give you the right to the performance of the music — that is, the stuff represented in bits or grooves or magnetic forces. Nor does it give you the right to make copies of it, but more on that later. Let’s talk to the people who own the recordings. Which is…

the record label, of course! You wouldn’t think that the artist would own their own recordings, would you? That would be silly. Record labels exist to extract the most revenue possible from the recordings they have made, and to that end, they don’t seem to publish their licensing terms, or be interested in offering blanket coverage for sound recordings.

I had originally thought this step is subsumed by the mechanical rights I mention below, but in the comments Craig Patchett points to a licensing primer that lists a “master use license” which you will need to negotiate with the content owner. That’s something you’ll have to seek out from each record label, and not only can they charge you whatever they can get, they may also see fit to refuse to license the track you’re seeking.

There is a statutory license that arrived in 2002 for the purposes of webcasting. For .07¢ — that’s seven hundredths of a penny — per stream per performance, you can play what you like. (FYI: the minimum fee for 2005 is $500.) But podcasting isn’t webcasting: it’s a download, not a stream-based system. And since a download is copying an original, you need to pay the labels for the master use license, skip this step, and go straight to mechanical rights.

Mechanical rights

These rights, so named because of a history dating back to player piano scrolls, entitle you to make copies of music recordings. The Harry Fox Agency administers these licenses. Through the end of 2005, mechanical rights cost 8.5¢ for each track up to 5 minutes, or 1.65¢ for each track over 5 minutes in length. SongFile.com lets you buy as few as 500 of these at a time (that’s $42.50, to save you time on the calculator). Mind you, you’ll have to license each track separately, so if you’re making a music-oriented show, that’s $42.50 times every song you’re playing, minimum, per show.

What to do

And that’s most of it. Once you have paid the $750 minimum to the performing rights organizations, $42.50 per track to Harry Fox, and whatever is behind Door Number 3 to the labels, you’re covered, at least until more than 500 people download any given song. I am purposefully avoiding the discussion of other countries’ royalty systems, because I don’t know anything about any of them, and what I’ve written is probably already enough to make a few heads explode.

It is important to know this stuff now, to avoid a meltdown later. Should you decide not to go the licensing route, and your show becomes popular, you may be in for a rude awakening down the road. Remember the filesharing lawsuits? Of course you do. That’s just a publicity stunt compared to what people could be facing if they ignore these rights wholesale. All of these agencies sue infringers like it’s their job. Because it is. And the law is on their side.

I can hear it already: “But I’m a non-profit! I’m not making any money on this at all!” Yes, we know. But there’s no provision for that in the law. You’re broadcasting, as far as they and the law are concerned, and that means keep records, report playlists, and pay up.

What can you do about this? In the future, if podcasting catches on broadly, it’s going to be best to ask all of the owners of all of these rights to offer a license that reflects the reality of the situation: lots of people are making shows, and lots more are listening. Therefore, give us a licensing regime that doesn’t require a lawyer, an accountant, and a traffic department just to make a 21st-century mixtape.

The alternative to this is to separate yourself from the entire system. Creative Commons-licensed music explicitly waives the author’s right to the royalties I’ve mentioned here. A large number of artists are using Creative Commons licenses, either out of pure altruism, or cognizant of the fact that offering a defined set of rights to users means there are no questions for people like podcasters. In other words, Staccato is in the clear. And I’m keeping good track of the licenses I find, just to avoid a nasty surprise down the road. I’m not looking forward to what I expect will happen sometime in the future, but I expect to be ready in case it does.

(Note to anyone who knows more than I do about this: feel free to correct anything I may have misstated. Thanks again to Craig Patchett for the pointer.)

25 responses to “Podcasting, music and the law”

  1. […] . I first wrote about this six months ago, and I was going to write a detailed update, but Matt May beat me to it. […]

  2. John Dowdell says:

    Great collection of info, thanks. Another option is to find scores which never entered that ASCAP/BMI/etc system. You’d need to arrange the performance, but it’s a way of finding familiar tunes which can be reworked without crossing that thought-police line. PDInfo.org offers a great overview of public-domain music.

    jd/mm

  3. Great stuff and perfect timing…I’m going to include a reference to this in my next edition of “Behind the Scenes” along with a link on the site. Thanks.

  4. Oh, and I just noticed you neglected to mention that you also need a master use license from the record label also, if I understand the fine print at SoundExchange correctly. The cost for this one depend on a number of factors and the kicker is that the label doesn’t even have to grant it to you. You can read more at http://www.soundexchange.com/licensing101.html. Fun, fun, fun!

  5. Tom Cross says:

    I also wrote a bunch of this out in email before seeing this update. I have few comments. The first is that you are either clearing public performance rights, internet performance rights, or reproduction rights. You aren’t clearing all three.

    If you are clearing public performance rights (including playing a soundrecording on the radio, or in night club, or in a store) you need to pay BMI, ASCAP, etc and that is all.

    If you are clearing internet performance rights you pay the statutory licence to the RIAA, as well as BMI, ASCAP, etc… This is for internet webcasters only and it has a lot of strings attached to it. Its important to note that internet radio stations, because of the DMCA, pay more royalities and have greater restrictions then “real” radio stations. More details are here.

    The restrictions clearly preclude podcasting. Any “archived show” must be at least 5 hours long and can only be made available for 2 weeks. As no one in their right mind would archive a 5 hour show this has essentially prevented internet broadcasters from archiving. Again, thank you, Congress, for your vision and foresight.

    If you want reproduction rights you need to clear the “mechanical rights” and the “master use license” but you do not need to also pay the public performance rights (BMI/ASCAP) because you are no longer performing the song. You are distributing it.

    The line between a podcast that is like a radio show where I play a song or two inbetween talking and a podcast that is like a compilation CD is blurry. You can rest assured that the RIAA has no interest in either one existing. They simply couldn’t be bothered with the sort of participatory media that things like blogs and podcasting consist of, and tried to crush small webcasting.

    The initial rate for the statutory licence for Internet broadcasters was set at a rate that was astronomical for small nonprofit webcasters. The end result was a long fight over their ability to exist. All of the legal small webcasters were forced to shut down for a period of several months during the summer of 2002 while the RIAA tried to (quoting Hilary Rosen) “turn chicken shit into chicken salad” by pounding them for every penny. Frankly, its unlikely that RIAA would have settled with them at all if Congress had not been threatenning in the background to shove a solution down their throats, and the only reason Congress cared is because they had tens of thousands of constituents screaming at them about it.

    You can read more about it here:
    Hollywood Reporter, News.com, News.com, and Webcaster Alliance.

    These people need to catch up on their Toffler. The RIAA is Anti-Prosumer.

  6. Matt May says:

    Okay, I guess I’m still a little fuzzy about all of this. Tom, you say that people distributing music don’t have to pay public performance rights. But ASCAP’s Interactive 2.0 license specifically mentions download-oriented services. (It also specifically disclaims granting any right to create copies.) Does that mean licensees are getting snowed?

    Another approach: we can take more or less for granted that a streaming radio station is on the hook for these licenses thanks to CARP. We also now know that sites like Napster or the iTunes Music Store have to pay money to RIAA and Harry Fox, but don’t need to pay for public performance rights.

    But what about the space in the middle? Let’s take a music-oriented show as an example. It’s an hour long, and available indefinitely as an MP3. It contains 10 songs. The tracks themselves are unedited, full-length compositions, but are only available as a part of this single MP3 file. (That is, it’s not a download service per se, it’s a collective work.) If it’s framed in the context of a recorded performance, is that a duplication, or a performance, or both?

    Admittedly, we’re getting toward the philosophical end of this discussion, since all roads lead through RIAA, and they have no obligation to play ball, much less grant a statutory license. But it’s important to know exactly where the obstacles are placed in order to know how to route around them.

  7. Tom Cross says:

    I must apologize. It turns out my post was somewhat wrong, but for the right reasons. Please understand IANAL, I’m just someone who once had a dream of setting up a small internet radio station, only to see those dreams summarily crushed.

    Ascap is saying that they cover the right to perform the song, Harry Fox covers the right to reproduce the song, and that RIAA covers the right to perform and/or reproduce the sound recording.

    For webcasters you have to pay ASCAP, as you are performing the song by playing it, and you have to pay the RIAA as you are performing the sound recording. You don’t have to pay Harry Fox, because they have determined that you are not actually making a “digital phonorecord delivery” when you stream the song. (See definition here.)

    Now, clearly if we have a download oriented service we have to pay Harry Fox as we are delivering a sound file. We also have to pay RIAA (the labels) because of the sound recording. But do we have to pay ASCAP? Intuitively you would think the answer would be no.

    If you were distributing the song on CD you wouldn’t have to pay them, and this is explained in the licensing primer that Craig Patchett points to (section on compilation CDs). When I download a song from the iTunes store there is no public performance of the song. I’m buying a copy. The end user decides when to play it. There is no difference between buying a copy on CD and downloading a copy and then burning it to CD. The bits move from point A. to point B. They start and end their journey in the same places.

    But, ASCAP clearly disagrees, claiming “Every Internet transmission of a musical work constitutes a public performance of that work.”

    Lets look at how title 17 defines public performance.

    “To ”perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.”

    If the song is not actually played or “made audible” then it was not performed. If I transmitted the data but did not play it, it was not performed.

    Where are they coming from? Apparently ASCAP thinks a 1995 law called the Digital Performance Right in Sound Recordings Act turned all “digital transmissions” into public performances, and so they are entitled to a royalty every time a music file is downloaded even if they wouldn’t be entitled to it in the case where the same music was transmitted between the same parties in the same way via fed-ex.

    IMHO this is ridiculous and ought to be challenged, but I don’t have the resources to do it.

    As far as your philosophical example is concerned, the fact that you call it a show is not really important. What is important is that it is delivered as a file rather then as a stream. You WOULD need to pay all three royalties. If you had distributed it on CD rather then as a file you would only need to pay two. If you streamed it you would only need to pay two.

    I agree that the best way to route around these people is to stop playing their music. On the internet, if its too difficult to get at your content you aren’t relevant. Bloggers and podcasters aren’t going to be talking about your song if they risk getting sued by 10 companies if they do so. They’ll talk about CC licensed content instead. That content will be relevant. People who are relevant on the internet ultimately make money. It will take time for that culture to develop for music, but its inevitable. It already happened with software and written media.

    But, regardless, our rules for copyright ought to be consistent and they ought to be fair. Internet transmission should not magically create new royalty requirements that other media don’t have. If Internet radio must pay the RIAA then stores and AM/FM radio should have to pay them as well. If there is no real difference between shipping you a CD and letting you download a file then there should be no legal difference. You should not have to pay for “ephemeral copies” or other technological side effects. Ultimately, laws should be about what PEOPLE do and not how technologies work. But now I’m really dreaming. None of this is about how to make things work, its about how to make money.

    Jamie Zawinski’s helpful explanation of webcaster licensing says the following: “Someone said to me, “how do they expect the little guys to survive?” I replied, ‘No Mister Bond, I expect you to die.’ They’re trying to legislate webcasting out of existence, because it stands in the way of their progress toward a completely pay-per-view economy.”

  8. Paul Adams says:

    What about sections of a song for “bumper music” during a talk show? I worked at a talk radio station and we didn’t have to report any use of music when just a segment of it was used for bumper music (<30-45 seconds going into or out of a talk show).

  9. Paul Adams says:

    What about when the music is used for a NEWS broadcast. Say you wanted to report on new record releases and you played a 30 second clip of a song and mentioned it’s release? I believe this is done royalty free. Isn’t it?

  10. Bennett Lincoff says:

    “I thought that the following would be relevant this thread on podcasting; it’s the text of a speech I gave at a event sponsored by the Digital Computing Industry Association in NYC the other week:

    The crisis that grips the digital music marketplace is the making of the music industry itself. It results from the industry’s failure to respond constructively to the changed circumstances imposed on it by the Internet.

    I would like to suggest a possible solution to this crisis: One that simultaneously: Protects the integrity of copyrights; promotes technological innovation; facilitates the growth of all manner of digital audio services (including P2P); and meets consumer demand.

    I begin with this: The Internet is fundamentally incompatible with a sales-based revenue model for works of popular culture, especially music.

    Every Internet user, whether or not involved in P2P, and every webcaster or other digital audio service provider in the world is a potential source of unauthorized mass distribution of recorded music.

    Through the Internet, the market for sale of individual recordings

  11. Bennett Lincoff says:

    “I thought that the following would be relevant this thread on podcasting; it’s the text of a speech I gave at a event sponsored by the Digital Computing Industry Association in NYC the other week:

    The crisis that grips the digital music marketplace is the making of the music industry itself. It results from the industry’s failure to respond constructively to the changed circumstances imposed on it by the Internet.

    I would like to suggest a possible solution to this crisis: One that simultaneously: Protects the integrity of copyrights; promotes technological innovation; facilitates the growth of all manner of digital audio services (including P2P); and meets consumer demand.

    I begin with this: The Internet is fundamentally incompatible with a sales-based revenue model for works of popular culture, especially music.

    Every Internet user, whether or not involved in P2P, and every webcaster or other digital audio service provider in the world is a potential source of unauthorized mass distribution of recorded music.

    Through the Internet, the market for sale of individual recordings can be ruined in s

  12. Bob Bellin says:

    For anyone who hasn’t figured this out, the music industry is trying to thwart all forms of digital music. A slogan that portrayed their attitude might be, “if it doesn’t suck, you can’t do it”.

    Ironically, they’ve been least successful in the area (music file sharing) that could potentially harm them most and most successful in the places (Internet radio) that pose the samllest threat. Podcasting, if the numbers ever get big enough to seem threatening the the big 5, will be legislated to death.

    The “small webcaster” bill that was lauded as webcasting’s savior was exactly the opposite. It kept webcasters down on the farm, so that if they ever generated enough revenue to be a viable business the license fees would kill them. Podacsting will suffer the same fate and they’ll use the potential for piracy as the excuse.

    After all, “what would prevent these would be pirates from editing each song (minus those nasty crossfades which make a clean copy impossible) out of a podcast’s music one-by-one and then putting them out on e-mule or bitTorrent”? Nothing except that multiple copies are already out there so why bother.

  13. Tom, above you wrote, “The restrictions clearly preclude podcasting. Any “archived show” must be at least 5 hours long and can only be made available for 2 weeks. As no one in their right mind would archive a 5 hour show this has essentially prevented internet broadcasters from archiving.”

    Apparently I am not in my right mind, as I have archived dozens of my weekly 8-12 hour internet radio broadcasts. If you would, please tell me where you spotted this 5 hour loophole. I’d like to examine it further and, if possible, jump through it into the world of podcasting. Thanks.

  14. Susan Berg says:

    What is the answer to using segments of music during a talk show? Does that avoid all the licensing issues?

  15. Hey Matt, I invite you sign up for my company’s customized broadcaster feed service at “http://www.garageband.com/htdb/feed/partners.html” (it’s free). We’ve been told by our members that it is currently the single largest source of music for podcasting. Looking at the list of podcasters that have signed up for our service, I believe that assertion. I was fascinated to see, starting in October 2004, podcasters come to dominate new signups to this service we originally created for college radio stations and webcasters. Anyway, the service should make it easier for you to find and clear a larger catalog of music (much of it CC licensed). Also, your fellow podcasters who are listed there (many names you will recognize) are a great resource for these questions. Check it out and email me if you want to have a longer discussion about the legal/ethical issues of using independent music in podcasts.

  16. Rusty Faust says:

    OK … what about podcasting new and archive copies of an existing weekly Radio program? This is a music show (blues/soul/jazz) for which the licensing is already paid by the station. The songs are segued (artfully mixed one to the next) and I talk over some intros. Would I still need to pay ASCAP, BMI, Harry Fox or other fees?

  17. Lou Pickney says:

    Nice article with some interesting insight on the whole copyright/royalty process. I’ve been trying to figure out if there was some way to individually license songs on a song-by-song basis, but it appears that it’s anything but easy to do that. It’s too bad; I’d hoped to mix a couple of commercial songs in with the Podcasting capabilities on GarageBand.com, which allows you to use its music on Podcasts eminating from its website. I wouldn’t mind paying a reasonable fee to be able to use some commercial music, but apparently there’s no sort of a la carte system in place to allow that. What a shame…

  18. I echo the earlier question: what about short bumper segments of music used during an otherwise talk-only podcast?

  19. Mark Fox says:

    This paper includes a discussion of legal issues and podcasting:

    Crofts, S., Dilley, J., Fox, M.A., Retsema, A. & Williams, R. (2005) Podcasting: A New Technology in Search of Viable Business Models. First Monday, 10(9):
    http://www.firstmonday.org/issues/issue10_9/crofts/index.html

    ABSTRACT:
    Podcasting has become popular as it allows listeners to time–shift content, i.e., to listen — when it suits them — to radio–like programming on portable MP3 and related devices. Dissatisfaction with traditional radio — which has too much advertising and is perceived to have generic programming — is fueling interest in programming that better meets the individual needs and interests of consumers. Podcasting represents a shift from mass broadcasting to on–demand personalized media. We look at the development of podcasting technology, the social context within which this development has occurred, and outline the legal constraints that podcasters face. Then we examine some business models for podcasting.

  20. Lee R Joby says:

    This site is devoted to the protection of copyright works, anti-piracy and promotion of legitimate music sources.

  21. Lee L Joby says:

    Extensive information and advice on copyright and related issues. We issue the unique English Copyright Certificate for all original works registered with Songrite. Registration is simple and extremely cost effective.

  22. Musician says:

    Very good advice im going to need this. Tanks for the information about copyrighting and related stuffs. Songwriters deserves it and everthing associated with the industry.

  23. I’ve been putting out podcasts that are of jazz jam sessions and jazz group performances on our podshow since last July. All of the tunes performed are jazz standards, unless occasionally a group does some original music. We’re not broadcasting anyone’s records or selling anyone’s music. So where does that leave us?

    Can they really be upset about amateur and semi-pro to pro jazz players playing some tunes at a club and having the recording be out on a podcast? Do we have to secure some kind of license for this?

  24. James says:

    I saw that you have a page that discusses patent-related resources at http://www.bestkungfu.com/archive/date/2005/02/podcasting-music-and-the-law. I wanted to suggest adding http://www.freepatentsonline.com to the page. This web site has free PDF downloading (instead of having to page through TIFFs like at the US PTO). It is by far the best free patent searching site.

  25. Robin says:

    Another thing that has been brought to my attention from an independent songwriter/artist is that many new artists/songwriters have signed contracts with the licensing companies such as BMI and are still distributing their work under the creative commons license and at podsafe music sites. Even if you have persmission from the artist to play their music and they signed a license contract (BMI, ASCAP, SESAC) you can be sued by the licensing agency. Be careful of so called “podsafe music sites”. Just a heads up!

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